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On Impeachment

For those of you who follow me on Twitter, you may have noticed a lengthy exchange I had with John Sexton of Verum Serum and AG_Conservative after the latter quipped that the DNCC fundraising apparatus should send Sarah Palin a thank you note for being able to raise so much money off of impeachment talk.

What I gleaned from the exchange that followed was this: there are those on the right who concern themselves primarily with what they call “strategy” — and in this case, view impeachment as a terrible strategy that could energize the Democrat base and foil a takeover of the Senate by the GOP (or, if you prefer, those who carry an R in front of their names, but who ran by courting Democrats and demonizing the constituency they now will claim to represent, making their affiliation more difficult to pinpoint) — and those who view impeachment not as some mechanistic act, but rather as a Constitutional imperative if in fact the case can be made that impeachable offensives have been committed. That is, while impeachment itself as a numbers game cannot happen given Reid’s control of the Senate — and so is a futile “strategy” maneuver, when viewed in that light, one that may, in fact, energize the Democrat base if it’s promoted on principle alone — the argument can (and in my opinion should) be made that those who take an oath to uphold the Constitution should be prepared to use those remedies proffered by the Constitution; more, they are in fact obligated to use such remedies, if in fact they wish to maintain the integrity of separation of powers. (Sarah Palin called into Michael Medved’s show to make her case; while Medved argued as Medved normally does, up to and including a reminder that Obama is, in fact, the first black President).

Boehner’s lawsuit is, as I’ve argued, a punt. A distraction. A joke. And while I do hope it is granted standing, there’s no reason to believe a court won’t ask the GOP House why, when it has among its own powers several checks on executive overreach, among them the power of the purse (a power Speaker Boehner preemptively surrendered), it is seeking remedy from a co-equal branch to solve what is a separation of powers dispute that the Constitution already provides remedy for?

The essential question is this: if the GOP believes that Obama is a lawless President who has committed the high crime or misdemeanor of exceeding, repeatedly and without fear of clear constitutional restraints, the proper function of the executive, and has appointed himself a second legislature, one that trumps the actual legislative bodies designed and implemented by the Constitution, then does it have an obligation to act on behalf of We, the People, whose sovereignty is being molested by the bypassing of elected representation?

This is not a simple matter of mechanistic strategy. It is a matter of Constitutional principle and the fate of the separation of powers. So while it may not prove politically expedient to do what the Constitution calls for, does that mean that not doing so is savvy politics, or an abrogation of the responsibility doled out to elected representatives under our Constitutional structure?

Many prominent Republicans who concentrate on head counts and believe control of the Senate under any circumstances (save conservatives being elected, natch) should be our primary focus choose to see impeachment as a mere political tool. Whereas others of us see impeachment as a political tool that is meant to be used when the Constitutional principles our elected officials swear to uphold come under attack.

Again, one way pragmatism can be used is in the promotion of principle as your rallying cry. The case for impeachment can be made, and it should be. This doesn’t mean it will succeed — and in fact, in the current electoral situation it almost certainly can’t. But the fact that it won’t succeed doesn’t necessitate an avoidance of the argument advancing the principles behind the attempt.

If we believe in the Constitution and wish to call ourselves conservatives, we simply must be willing to buck the popular wisdom — for instance, who cares what percentage of those polled are against impeachment? Have they had the case made to them why impeachment is being considered to begin with, and what the President’s overreach means to them as individuals going forward? — because the popular wisdom is almost always narrativized by the left and then reinforced by a timorous right who fears losing the “moderates” or undecideds.

Pale pastels or bold colors. There’s a choice to be made. So while you may be of the opinion that impeachment as a tactic is dangerous so close to an election, that’s no reason to try to minimize or dismiss those who hold an opposite view.

The truth is, the Democrats can get their base energized just as easily by calling us racists; or by raising the specter of a “war on women.” And so long as we keep allowing them to do so, they’ll find boogeyman to use against us.

Instead of running from the case for impeachment, it is just as reasonable to outline the case and then say that, from a numbers perspective — and given the lockstep nature of the Dem Senate under Reid — there is no way that impeachment can happen. But that still shouldn’t prevent the American people from hearing just what it is the Dem-led Senate is willing to say is proper Executive behavior.

The left sticks together; we eat our own. But not because our own deserve to be eaten. Rather, because those who are eaten are consumed to show deference to the left’s hold over popular opinion.

You don’t change that by consistently capitulating to it. You change that by going around their presumptions to play permanent narrative gatekeeper.

All of which was just my long run-up to this interview with Andy McCarthy on the subject:

You are correct, of course. While the battle may be lost, it is sometimes important and necessary to draw a philosophical line in the sand. This is what we stand for: limited government by the assent of the governed with checks and balances to prevent any branch from becoming tyrannical.

And yes, Boehner’s suit is a joke. And I’d be tempted to go along with the idea that given the current make-up of the Senate, impeachment is a lost cause, if, and only if the House would do its congressional job and stop funding those things over which the Executive Branch has asserted unconstitutional authority. But we get neither. As sdferr implies, all three branches have abrogated their constitutional powers and privileges in order to maintain pure, undiluted power over the populace. The examples are legion, the invited invasion of foreign enemies being only the latest examples. The more this goes on, the more I’m convinced that whatever hope remains resides in the States. I pray there is still enough residual institutional memory among the citizenry of what this country is about.

“So I think the failure to enforce the law is a big one, because it’s one of the president’s most important jobs in our system. The president is the only official who’s required by the Constitution to take an oath to faithfully uphold the laws and preserve the Constitution.”

When I read this I had a memory of the botched oath at the first Obama inauguration ceremony, and then the behind closed doors private redo administered by, yep, SCJ Roberts.

Did he swear again at his re-election, and did anyone see it? Because I have serious doubts Obama swore the required oath at all.

Oh, he’s already snickering Pablo — it’s now a permanent part of his every stump speech. Just today he laughs as he says “Today the House is deciding whether they are going to sue me for doing my job.”

Pablo, as to standing, this looks very much like a “political question”:

Political Question Doctrine

Federal courts will refuse to hear a case if they find it presents a political question. This phrase is construed narrowly, and it does not stop courts from hearing cases about controversial issues like abortion, or politically important topics like campaign finance. Rather, the Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government. Baker v Carr, 369 U.S. 186 (1962). Therefore, the Court has held that the conduct of foreign relations is the sole responsibility of the executive branch, and cases challenging the way the executive is using that power present political questions. Oetjen v. Central Leather Co., 246 U.S. 297 (1918). Similarly, the Court has held that lawsuits challenging congress’ procedure for impeachment proceedings present political questions. Nixon v. United States, 506 U.S. 224 (1993).

For the disambiguation: “After petitioner Nixon, the Chief Judge of a Federal District Court, was convicted of federal crimes and sentenced to prison, the House of Representatives adopted articles of impeachment against him and presented them to the Senate.”

The function of impeachment isn’t to remove people for political differences, it’s to remove them for real crimes so that they can be handled by the criminal justice system.

The drafters of the Constitution were informed by some events in English history, particularly the struggle between the Stuart kings and Parliament. The king could prevent Parliament from reaching a quorum by the simple expedient of arresting members as they tried to enter the building. The charges, of course, wouldn’t matter; the point was to remove the members from the floor, so that Parliament could conduct no business. The Constitutional solution was to prohibit arrest of Congressmen in their offices or in chambers, and while traveling between the two. But that also made them immune from arrest for actual crimes. In the early days, when the attitude of Congress was a bit more spirited than it is today, members would occasionally beat each other severely with their walking sticks, or sic their dogs on their foes. The solution was impeachment. In case of crimes such as assault, an officeholder could be removed from office for “high crimes and misdemeanors”. Once removed from office, the protection from arrest didn’t apply, and the justice system could take its course just as it would for any other person. Similar reasoning applied to many aside from Congressmen, such as judges and the President. It was basically a logical development of “checks and balances” and the separation of powers, preventing the branches of government from harassing each other into impotence, but at the same time not making government officials totally beyond the reach of the law.

During Jefferson’s presidency, the Democratic-Republicans were alarmed by Chief Justice John Marshall’s decision in Marbury v. Madison, a rather minor case about an appointment by John Adams of a justice of the peace. In his decision, that notorious Federalist Marshall enunciated the principle that the Constitution was the supreme law of the land, and that no law in conflict with it could stand. To the Democratic-Republicans, this was an unjustified expansion of the power of the Court, and they tried to break it by removing justices via impeachment. They didn’t feel strong enough to challenge Marshall directly, so they want after a minor figure, Justice Samuel Chase.

The impeachment failed. This has been interpreted since then as a precedent that impeachment doesn’t remove officials for policy differences, even major ones, but only for actual criminal behavior – burglary, bribery, corruption, espionage, treason, etc.

So I wonder what actual crime Obama would be impeached for. Violation of the oath of office? Is that a crime, or just a poor work ethic?

Well, I would think “murder” would be at the top of the list (killing American citizens with neither indictment nor trial, which also violates their Fifth Amendment rights), along with the multiple violations of Constitutional rights of American citizens (see: NSA eavesdropping and arrest of Nakoula Basseley Nakoula), abuse of the IRS for political oppression, violation of his Oath of Office (to “faithfully execute” laws that he unilaterally decided to just ignore or unilaterally alter, to wit, DoMA, Immigration, the War Powers Act, and ObamaCare’s many amendments by the Executive Branch rather than the Legislative), and none of those are political questions.

One could also argue multiple and ongoing violations of First Amendment rights, but those were more accurately the actions of Eric Holder and Kathleen Sebelius, rather than Obama.

Tom, your position is odd given that the bodies with the power to impeach and to remove are both composed of elected officials. There was a reason the Founders put those powers where they did, and it wasn’t because they didn’t want icky politics to get all over their political system.

Addendum on the question of “precedent” re impeachment. SCOTUS has held since Day 1 that Congress cannot bind future congresses against changing whatever a previous congress has done. Therefore any “precedent” on the matter of impeachment was valid only until the Congress expired that had defeated Chase’s impeachment.

Except that Congress could also have revisited the matter at any time before it expired, and reached a different conclusion.

Again, impeachment is a power of Congress because it is political. Congress can impeach a president or an official for giving speeches in an annoying voice, if enough members of each house vote for it.

There would of course be political repercussions for such an impeachment, and it is that more than anything that turns Weepy’s bowels to water — and would even if the Senate consisted of clones of Sheriff Joe Arpaio. But if the articles were drafted, the trial held, and a conviction obtained, Obama would have no recourse short of open lawlessness.

This is not about political policy differences. This is about failure to uphold the Constitution, which is the oath charged at the outset of taking office. Capitol police can’t arrest Obama for declaring executive orders that run counter to federal law; but he can certainly be removed by the legislative body for his attempt to usurp their lawmaking powers.

Let’s add that Levin’s explication this afternoon on impeachment was a fine exercise in intentionalism. He referred to the history and intent of the Framers regarding the impeachment power of Congress, and plain misrule was well within their view of what could and should precipitate impeachment. Particularly interesting was one Framer’s written commentary suggesting that the possibility of the unitary executive acting in so many unpredictable ways to the nation’s detriment meant that no single law could be written to cover such extremes. Hence, they granted the impeachment power to Congress under circumstances broadly defined as high crimes and misdemeanors.

>his has been interpreted since then as a precedent that impeachment doesn’t remove officials for policy differences, even major ones, but only for actual criminal behavior – burglary, bribery, corruption, espionage, treason, etc. <

Our enemies, we know, will use every artifice that hell can suggest and human power can execute to enslave us ; but we are determined not to submit. We choose to effect our salvation from bondage by policy, rather than by arms ; considering that the blood of freemen who fight for their country is of more value than the blood of a soldiery who fight for pay. We doubt not but a virtuous continental adherence to [the] non-importation, non-exportation, and non-consumption agreement, will produce such changes in Britain as will compel them to give us every thing we wish. But if this should fail, and we should be obliged to seek redress in the way you have hinted, we flatter ourselves that we shall act like men, and merit the approbation of all America. The conduct of our adversaries is to us astonishing. Policy is no more their guide than justice. They have shut their eyes against daylight ; and, if they lead the British nation into the pit they have digged for us, the blame must be laid to their own door.

Impeachment should always be an option. It is not a good choice right now (because we do not have the senate). But I like Sarah Palin’s moxie in making the case with Medved. Sarah Palin is not the problem.

Jennifer Rubin’s proposal of the GOP fighting back politically with Obama, while keeping options available makes more sense.

So Instapundit quotes extensively from a defense of the House lawsuit made by David Rifkin and Elizabeth Price Foley on the WSJ Op-Ed page today. In the quote Instapundit makes, Rifkin and Foley write this:

Oh, on the contrary, impeachment is a good without which the Constitution of the United States would not make any sense at all.

However, because the United States is largely populated by ignorant or careless people who have no idea how to secure their own safety — and therefore do not look to impeachment as one of the primary means to secure their safety — the ignorant opinion (a false opinion) of these same people, misled for generations now, indicates by means of a semblance of a partisan political electoral advantage (in a temporary sense, we hope) due to this grossly mistaken and changeable opinion, that the “time is not ripe”, because the people do not demand it.

Opinion, we know, is alterable.

Then work to alter this idiocy — i.e., stop repeating what everyone “knows”, when “everyone” has his hand in the cash register.

If not having the Senate makes impeachment “not a good choicce,” what’s the point? There will be times, like now for example, where a president who needs impeachin’ has equally criminal allies in the Senate.

How does the Constitution survive if the House approaches impeachment like a rookie DDA more interested in protecting his win/lose ratio than pursuing justice?

Elizabeth Price Foley was the lady I was engaged with on Twitter the other day who told me to read her op-ed in WaPo. I told her that, my already having been quite up to speed on current events, her op-ed was unlikely to affect my position that the lawsuit is, as I called it, a punt, a distraction, a joke.

Even should the House alone gain standing (dubious at best), the fact of the matter is the suit itself is a testament to the willing surrendering of separation of powers, as the House goes to the courts to have the courts tell the Executive that the House has certain authorities that he does not.

But this is already laid out, and within the scope of three co-equal branches of government, the remedies for the legislative body to protect itself from usurpation are provided in the Constitution through the power over taxing and spending / borrowing and, of course, impeachment.

Federalist 65 (h/t Mark Levin) spells out explicitly that impeachment is for use in matters Political (capitalization in the original) in nature. So what we have now is a GOP establishment so afraid of its own shadow that it has surrendered not only its purse powers (“we will not shut down the government”) but also its power to impeach an imperial executive who repeatedly violates the public trust, which is easily encompassed in acts wherein he openly and brazenly defies clear federal law and the will of the people.

Whether or not it is politically palatable or prudent to undertake impeachment is a different question than is has Obama’s various actions risen to the level of impeachable offense. Paul Ryan says no, they don’t, even were Obama to use and executive order to legalize 5-6 million illegals in direct violation of existing federal law, voted upon by Congress and signed into law by a previous set of executive office holders. And in fact, we have many prominent GOP leaders saying this very thing — and they are 100%, demonstrably, historically, and from the perspective of Constitutional originalism, wrong. More, I think they are intentionally misleading us because they’re trying to capture the Senate on the wave of dissatisfaction with President, and their “strategy” is to keep their heads down, throw out a frivolous, empty, silly piece of red meat to the gullible (the lawsuit) that in effect literally weakens the case of co-equal branches and separation of powers (the Court becomes the repository of philosopher kings who will make the final determination if they so choose, and who better than a wise Latina and a broad who wishes we were living under some other Constitution to make that decision, eg.), and hope to sneak into the majority.

— Though it bears repeating that their interest only goes so far: I mean, if doing so means they have to put up with constitutionalists like McDaniel, then fuck it.

The sophistry, apologies for inaction and glaring, limp and lilted impotence, and attempts to shout down or dismiss as co-conspirators in a potential GOP defeat those who respect and encourage separation of powers and the rule of law, is so disgusting as to make me want to puke.

I don’t really care who takes the Senate any longer. I’m for encouraging state governments to assert 9th and 10th Amendment rights and reject whatever lawlessness comes from the feds, including from the federal courts. Go police your borders and let the federal government, once you stop adhering to sycophantic court rulings, send in the military to keep you from protecting your populace — be it from disease, importation of state wards, the draining of resources, et al.

The optics of that would certainly play well: our federal military pointing their weapons at state enforcement agencies looking to protect US sovereignty and the citizens of the state.

As I note in the post proper, the fact that we may not have the votes to impeach Obama doesn’t mean we don’t make the case, particularly when his actions are so egregious that, given the proper case, Americans otherwise disengaged could come to see that the purpose of the Democratic Majority in the Senate is to protect Obama’s clear lawlessness at all costs. Having a Sessions or a Lee or a Cruz or a Paul or several others available in the Senate to make the direct case — cutting through the platitudes and race baiting of the Schumers and the Reids of the world — would make compelling “action.” And it may sway voters already inclined to give Obama historically low marks on his handling of the situation in Israel and on the border.

Boehner’s lawsuit covers only ObamaCare. It doesn’t address the border issue. And that’s because, as I’ve intimated, the GOP wants Obama to use an executive order to do what they can’t get their own base to agree to. And once he does, they’ll wink and then go about fundraising off this egregious misuse of power, though the egregiousness doesn’t extend so far as to warrant using the power of the purse nor impeachment to address.

It’s all theater.

If if weren’t a waste of my precious bodily fluids, I’d piss on the lot of them.

He sure did McG. Sometime back, I recall, I did a close reading of some one of the Federalist Papers here at pw, which Paper (I don’t recall which at the moment without going to study the question again right now) laid out the rationale for placing the judgement of the charges in the Senate. As I recall (vaguely, I admit) my conclusion at that time was that the 17th Amendment actually caused a violation of the principle of interest underlying that rationale, completely undermined it, in fact.

I believe that most people don’t want the President impeached because many of them remember the Clinton impeachment and how they were bombarded with news about it 24/7. They had to actually pay a tiny bit of attention to “boring” politics instead of whatever version of the Kardashians was around back then.

How many people do you hear complaining about politicals ads on TV before every election? Same same.

True sdferr, and I realized after I hit “post”that he was probably confirmed by congress like many in the succession line. Duh.

I guess I was just thinking having the DHS in there is like having the top military commander in line. It just feels wrong to fill a political position from an institution that is supposed to be studiously non-political.

Just an tangent thought, I know it’s insignificant in context with our present circumstances. Sorry.

After Veep, Weeper of the House, and Presentdent pro tem of the Senate, the law goes back to the execrable branch in order of Cabinet seniority. Then I guess it goes back to Congress, again in order of seniority.

Eventually I suppose it would find its way down to the guy who sold a cupcake to the part-time barista who serves coffee to the night dishwasher in the Department of Education cafeteria in Omaha.

it blasphemous of me, but like i care: i simply attach his providence to reasoning obedience to reasoning — like abe lincoln said, so making two sides of one coin — over here, prosperity and accord with reasoning classical liberal contract political order, and over here, abandonment of reason and with it comes misery and dread

oh no, i think i’d have to have a particular teaching in mind when referring to a particular blasphemy — so not thinking of the ba’hai or the zoroastrian or shintos etc, i wouldn’t be thinking of things they might find heretical – i probably wouldn’t have any idea as to that, in fact

and too, my mere disagreement wouldn’t necessarily register as blasphemous in my mind — even though the substance of the disagreement itself might be blasphemous in fact — but that in this case i was thinking the attribution of divine providence by me to one thing or another might very well be a particular violation

plus worse (looking back) i see i made an error writing the original bit — not that the correction would alter it all that much, if yet it improves the grammar a little — where i wrote “it blasphemous of me” i should or meant to write “it may be blasphemous of me” or something to that effect — or, as, “if it’s blasphemous” or what have you

Mark Rep. Kristi Noem, R-S.D., down as against impeaching President Barack Obama.
After taking decidedly vague public positions on the South Dakota Republican Party’s vote at its June convention to call for President Obama’s impeachment, Noem told reporters Wednesday that she is against the idea.
“I’ve never thought that was the solution we should be pursuing,” Noem said during a regular conference call with the press. “With the arguments for impeachment, the president has to have taken, himself personally, actions that are criminal.”
Noem made her statements after House Speaker John Boehner, R-Ohio, said this week that talk of impeachment is being whipped up by White House aides in an effort to make Republicans look unreasonable.
When asked by The Daily Republic earlier this month about her stand on the South Dakota GOP’s resolution favoring impeachment, Noem spoke only of her “frustration” with the president, saying he routinely disregarded “the legislative process.” She also called for more oversight hearings.
Noem said Wednesday that she agrees with Boehner and said she doesn’t believe the House speaker ever publicly supported impeachment.
Instead, Noem said she backs a lawsuit planned by Boehner against the president over moves to delay parts of the Patient Protection and Affordable Care Act, known commonly as Obamacare.
“We’ve got a lawsuit we voted on that I believe is one of the constitutional tools the House is entitled to,” Noem said. “When we see the president unilaterally circumventing the laws this country has established, it’s time for the judicial system to weigh in.”[!!! JHC!!! WTF?!?!?
Noem said it is the House’s duty to uphold the nation’s laws and to hold the executive branch accountable.
“We cannot have a lawless country,” Noem said. “I think it’s very clear that he’s ignoring the law that’s been set forward by delaying the individual mandate included in the Affordable Care Act. The correct way to approach that would be to change the law if he didn’t think it was workable.”

I guess it’s a good thing for Obama that ignoring the law isn’t personally criminal. I think I’ll try that on the highway patrol the next time I feel like doing 90 in a 75.

If she’s typical of Republican, and I suspect she is, the GOP doesn’t deserve to keep the House, let alone win back the Senate.

This question, the question of impeachment of this sitting President, has now turned into the spin-cycle of a paradox (“If the American electorate votes more responsibly next time, things will get better. Until then, alas, elections have consequences, and this is one of them.”).

The spin-cycle of a paradox is no kind of thing by which to govern a nation (“Maybe, as Glenn Reynolds says, this is a sign that someone in the White House is in touch with reality. Perhaps a coup has been averted, on this subject at least.”), whether that nation is tiny or is a nation among the great powers of the earth.

*** Quite simply, the Democratic Party is moving beyond the Constitution because a majority of its voters is doing so. But how does one impeach a party that represents a substantial part of the body politic?

What is the solution? The Constitution offers only the prayer that patriotic good sense will prevail. ***

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